CQ TODAY ONLINE NEWS – LEGAL AFFAIRS Sept. 27, 2012 – 6:07 a.m.

IG Report May Pose Challenges For House Panel’s Effort to Get Justice Documents

By John Gramlich, CQ Staff

An independent probe into a botched Justice Department operation has raised questions over the need for a lawsuit that a House committee is pursuing against Attorney General Eric H. Holder Jr. over documents related to the gun-tracking affair.

The 471-page report on the “Fast and Furious” operation, released Sept. 19 after a probe by Justice Department Inspector General Michael E. Horowitz that lasted more than a year and a half, is based on more than 130 interviews and 100,000 pages of documents — including those at the heart of a lawsuit that the House Oversight and Government Reform Committee filed Aug. 13 against Holder.

The lawsuit asks a federal judge in the District of Columbia to force Holder to turn over internal Justice Department documents produced in the aftermath of the operation. Holder has refused to give the committee the documents, and the Obama administration invoked executive privilege, asserting that the documents constitute internal deliberations of federal agencies that can legally be shielded from legislative review.

The department, however, made the same documents available to Horowitz. A key question now is whether the inspector general’s review of the documents, and the conclusions he based on them, helps or hurts the committee’s legal argument that the documents be turned over.

“We certainly feel that the IG’s report was important in terms of advancing the case for disclosure,” said Frederick Hill, a spokesman for the Oversight Committee’s Republican majority.

While both Democrats and Republicans broadly praised Horowitz’s report as thorough and fair after it was released, Hill noted that the legislative branch still has a compelling interest in independently reviewing the documents.

“Under our Constitution, Congress has a separate responsibility to review the facts itself and not rely on someone within the agency who works for the attorney general,” said Hill, adding that Horowitz’s report raised enough red flags about the Justice Department’s response to the Fast and Furious operation that the panel still has a legitimate interest in having the court force Holder’s hand. Hill noted, for example, that Horowitz found the department’s responses to congressional inquiries “troubling.”

Rep. Darrell Issa, the California Republican who chairs the committee and has led the congressional investigation into Fast and Furious, told Horowitz during a Sept. 20 hearing that the committee might be willing to drop its lawsuit if the Justice Department turned the documents over voluntarily.

“That kind of willingness to have our investigators see what you have seen would, in fact, allow this to come to a quicker close and perhaps eliminate the need for a protracted fight in the courts,” Issa told Horowitz.

High Hurdle for Panel

Legal experts agree that it may be hard politically for the administration to defend its use of executive privilege over documents that it has already made available to Horowitz, who openly referred to the documents in his report.

“It’s going to be difficult for the Justice Department [politically] to continue to invoke privilege over information that is now public as a result of the IG’s report,” said Stephen I. Vladeck, a constitutional law professor at American University in Washington.

But the legal question before Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia is distinct from political considerations, Vladeck and others cautioned. Vladeck said the legal question is “whether the government has a defensible claim in protecting the confidentiality of the documents.”

IG Report May Pose Challenges For House Panel’s Effort to Get Justice Documents

The administration has argued that the release of the documents would have “significant, damaging consequences,” according to a letter provided to the Oversight Committee by Deputy Attorney General James M. Cole on June 20, when the administration invoked executive privilege.

Courts traditionally have given broad deference to executive privilege claims, said Paul Bender, a constitutional law professor at Arizona State University. In addition, the fact that the inspector general concluded in his report that Holder and other senior Justice Department officials did not authorize or know about the Fast and Furious operation in advance, contrary to what many congressional Republicans suggested, may call the committee’s motivations into question, Bender said.

Among the questions the court may ask, according to Bender: “Why do you need this stuff? What is the imperative of having it? How will the world be worse off if you don’t have it?”

“The fact that the inspector general saw the documents doesn’t mean that the committee is entitled to them,” he said.

That Democrats and Republicans have praised Horowitz’s report as thorough may further weaken the GOP legal argument, Bender added, since it puts more of an onus on the committee to explain why it needs to see documents that have already been described in considerable detail by Horowitz.

Steps Toward Settlement

The likeliest outcome, several legal experts predicted, is that the lawsuit will be settled out of court, and there were signs of progress toward that possibility last week.

The Justice Department released about 300 pages of Fast and Furious documents that Issa has been seeking, a step that both Issa and the committee’s ranking Democrat, Elijah E. Cummings of Maryland, called encouraging.

“I’ve always believed, and I continue to believe, that the committee and the department can resolve any lingering issues without further conflict,” Cummings said. “With this action by the department, I urge the committee to reconsider its position and settle the remnants of this dispute without resorting to unnecessary and costly litigation that nobody in this country wants.”

If the dispute does proceed in court, one law professor said, House Republicans may need to refine the scope of their demands and ask the judge to compel disclosure of documents that may not have received attention in the inspector general’s report.

“It’s hard for a committee to march into court and demand information that’s already public,” said Steven D. Schwinn, associate law professor at the John Marshall School of Law in Chicago. “The natural response is going to be, ‘You’ve got to give us something more specific than that.”